Ag Gag Past, Present, and Future

• Publication year: 2015

SEATTLE UNIVERSITY LAW REVIEW Volume 38, No. 4, SUMMER 2015

Ag Gag Past, Present, and Future

Justin F. Marceau(fn*)

While the animal rights and food justice movements are relatively young, their political unpopularity has generated a steady onslaught of legislation designed to curtail their effectiveness. At each stage of their nascent development, these movements have confronted a new wave of criminal or civil sanctions carefully tailored to combat the previous successes the movements had achieved.

Among the first wave of animal rights activists were those who would seek to liberate animals from harsh or inhumane treatment through criminal trespass and property crimes. Whatever one might think about the wisdom or propriety of the tactics of this first generation of activists, it is beyond dispute that those opposed to the animal activists were not satisfied with the existing criminal sanctions for crimes like trespass and theft. Instead, this band of daring scofflaws were labeled terrorists by federal legislation and now face some of the harshest sentences available in the criminal code.

In recent years, most food and animal rights activists have abandoned direct action campaigns, perhaps in part because of the increased penalties that such crimes carry, and the well documented efforts (and abuses) on the part of the FBI to infiltrate animal rights groups and arrest persons involved in direct action.(fn1) In this new era, words, rather than deeds, have become the primary form of advocacy for persons seeking to expose food justice and animal welfare issues. And in the age of mass communication and the internet, the power of words and images can hardly be overstated.(fn2)

But industry has responded. Those willing to speak negatively about agricultural production have been confronted with at least two unique limits on their ability to criticize the way our food is produced. First, the agricultural industry lobbied for, and frequently obtained, legislation that provides for defamation liability without the defining limits of defamation. These distortions of defamation law, known as the food disparagement laws,(fn3) tend to shift the burden of proof from the plaintiff to the defendant (speaker), assume that statements critical of an industry are untrue unless there is definitive science to support the critique, or eliminate the mens rea of maliciousness as to the falsity of a statement. Such changes reflect a marked shift in the contours of defamation and allow for potential liability for speech critical of food producers that would be unthinkable in any other context.

And yet, at least the food disparagement laws, at their core, purport to target speech that is untrue. The most recent wave of anti-animal rights and anti-food justice laws, Ag Gag laws, criminalize efforts to produce true whistleblowing investigations in the agricultural context. Under an Ag Gag regime, the whistleblowing tactics of muckrakers like Upton Sinclair,(fn4) which have shaped public law and opinion about food production, are subject to criminalization. Under Ag Gag laws, people who record unsafe or cruel workplace conditions at agricultural facilities may be incarcerated. Typically Ag Gag laws take the form of criminalizing the acts of recording or the conduct preparatory to producing truthful speech about the production of our food. But as legal challenges to the traditional Ag Gag laws progress through the courts and their constitutionality increasingly called into question,(fn5) some states are considering the next generation of Ag Gag laws and practices-that is, Ag Gag 2.0. This new form of legislation or judicial action would further limit whistleblowing activism in a number of ways, but two key examples are the rise of quick report laws and the creative use of trespass laws to suppress information about public harms. These types of limitations on whistle-blowing are different in form, but the same in effect-they limit speech critical of the agricultural industry and function as Ag Gag laws.(fn6)

This brief descriptive essay will proceed in four parts. I will first review the history of animal rights advocacy and prosecution. Second, I will describe the agricultural disparagement, or "meat libel," statutes. Third, I will discuss current Ag Gag legislation. Finally, I will discuss the future of Ag Gag legislation.

I. THE FIRST WAVE OF ANIMAL RIGHTS ADVOCACY AND PROSECUTION

The modern animal rights movement began in the late 1970s and early 1980s(fn7) with the overriding objective of reducing the amount of animal suffering by eliminating the exploitation of animals by humans.(fn8) However, it would be a huge mistake to view the animal rights movement as monolithic in its goals or methods.(fn9) During the 1980s, members of the movement successfully brought cases of horrific animal abuse to the attention of the general public through conventional forms of social protest.(fn10) At the same time, many activists also took a more direct approach to alleviating animal suffering by engaging in various direct action campaigns, including the liberation of confined animals.(fn11) Certainly, animal rights activists are not unique in their use of a variety of both legal and illegal methods to influence public opinion and advance their ends.(fn12) However, it is fair to say that the early years of the animal rights movement in this country were characterized by a substantial number of effective, illegal actions.(fn13)

By the late 1980s, direct action campaigns, in which criminal activity played a substantial role, were helping the burgeoning animal rights movement gain momentum by stirring public interest. The first documented animal liberation in this country, committed in 1977 by Kenneth LeVasseur,(fn14) was illustrative of the direct action that characterized this period in the movement.(fn15) With the aid of several accomplices, LeVassuer released two dolphins into the wild after seeing that they were subjected to what he characterized as "life threatening conditions" at the facility where they were held captive.(fn16) As a result of the liberation, LeVasseur was arrested and charged with first-degree theft.(fn17)

Several similar acts of animal liberation followed. For example, in 1986, Roger Troen participated in an animal liberation at the University of Oregon as a getaway driver.(fn18) Consequently, Troen was also criminally convicted, sentenced to five years of probation, and ordered to pay $35,000 in restitution to the University of Oregon.(fn19) Rod Coronado, another animal rights activist, was also involved in several liberations throughout the 1980s and 1990s.(fn20) Coronado liberated minks and coyotes from university research labs, including Oregon State University, Washington State University, and Michigan State University.(fn21) He successfully avoided arrest for his efforts until a lab at Michigan State University was burned down in 1992.(fn22) Coronado was subsequently arrested and convicted for the arson, receiving a sentence of fifty-seven months in prison.(fn23) While these examples were caught and arrested, other activists continued to liberate animals while avoiding arrest.(fn24)

However, none of these criminal acts in the service of animal rights went unnoticed, and as the harm to the industry's bottom line grew, the legislative response was swift and harsh. In 1992, Congress passed criminal legislation that seemingly treated arson of a lab and the release of a puppy from a research lab as equivalent, and designated both as acts of "terror."(fn25) Specifically, Congress passed, and President Bush signed into law, the Animal Enterprise Protection Act (AEPA).(fn26) The AEPA states that anyone who causes "physical disruption to the functioning of an animal enterprise" shall be guilty of an offense designated a terrorism crime.(fn27) Physically disrupting an animal enterprise-including just releasing an animal-was deemed an act of terrorism punishable by lengthy imprisonment.

Savvy animal rights advocates, now facing the possibility of long prison sentences for releasing animals directly-even animals that were at imminent risk of death or torture-looked to another tried and tested method of activism. This popular method involved engaging in corporate pressure through boycotts and other less seemly methods.

A now infamous group of seven young, highly educated people, known as the SHAC-7, created one of the most effective and ingenious efforts to confront corporate apathy towards animal suffering. The animal rights group Stop Huntingdon Animal Cruelty (SHAC) existed solely to put the pharmaceutical testing lab Huntingdon-the largest animal testing lab in Europe-out of business.(fn28) SHAC sought to achieve this goal, not by destroying property, but by hosting a website.(fn29) The website published "names, home addresses and telephone numbers of executives and employees of Huntingdon and any companies [that Huntingdon did business with.]"(fn30) SHAC urged its supporters to contact those people and pressure them to abandon the use or support of animal testing.(fn31) In May 2004, following a three-year investigation involving over 100 federal agents from different agencies, seven members of SHAC USA, now known as the SHAC-7, were indicted by a grand jury for violations of the AEPA.(fn32) The website run by the group was deemed to be a conspiracy to violate the AEPA.(fn33) Years of investigation, hundreds of...